In resolving cases of unfair, abusive,
and deceptive acts and practices, consumer protection enforcement agencies
often prospectively dictate—in great detail—the design of defendants’
marketing, websites, disclosures, sales processes, and products. However,
advances in technology and analytics increasingly allow defendants to comply
meticulously with these precise requirements while simultaneously continuing to
deceive and injure consumers.

By trying to micromanage
defendants’ conduct, enforcement agencies fail to protect consumers, squander
precious enforcement resources, and create pointless compliance work for
defendants. Defendants themselves are in the best position to ascertain how to
cure the confusion and ill consequences they have wrought and they should bear
ultimate responsibility for doing so.

To effectuate this, this article
introduces two new performance-based remedies to consumer law enforcement: (1)
confusion prohibitions and (2) consequences prohibitions. These injunctive
remedies order defendants to eliminate the confusion and ill consequences
induced by defendants’ fraud. To comply with these prohibitions, defendants
would be required to reduce the confusion and ill consequences they inflicted
on their customers to prescribed levels within a prescribed time period. Defendants
would bear the costs of demonstrating, through independent third-party audits,
their compliance.